Prepared Remarks for Attorney General Alberto R. Gonzales
at the Georgetown University Law Center

January 24, 2006

Thank you, Dean.

Just after dawn on September 11th, 2001, I flew out of Dulles Airport less than
an hour before the departure from the same airport of American Airlines Flight
77, the plane that was hijacked and crashed into the Pentagon later that
morning. When I arrived in Norfolk, Virginia, to give a speech, the North
Tower of the World Trade Center had been hit. By the end of my remarks, both
the North and South Towers stood shrouded in smoke and flames with many
desperate people jumping to their deaths, some 90 stories below. I spent much
of the rest of that horrible day trying to get back to Washington to assist the
President in my role as White House Counsel.

Everyone has a story from that morning. Up and down the East Coast, men and
women were settling into their desks, coming home from a graveyard shift, or
taking their children to school. And across the rest of the country, Americans
were waking up to smoldering ruins and the images of ash covered faces. We
remember where we were, what we were doing … and how we felt on that terrible
morning, as 3,000 innocent men, women, and children died, without warning,
without being able to look into the faces of their loved ones and say goodbye .
. . all killed just for being Americans.

The open wounds so many of us carry from that day are the backdrop to the
current debate about the National Security Agency’s terrorist surveillance
program. This program, described by the President, is focused on international
communications where experienced intelligence experts have reason to believe
that at least one party to the communication is a member or agent of al Qaeda
or a terrorist organization affiliated with al Qaeda. This program is reviewed
and reauthorized by the President approximately every 45 days. The leadership
of Congress, including the leaders of the Intelligence Committees of both
Houses of Congress, have been briefed about this program more than a dozen
times since 2001.

A word of caution here. This remains a highly classified program. It remains
an important tool in protecting America. So my remarks today speak only to
those activities confirmed publicly by the President, and not to other
purported activities described in press reports. These press accounts are in
almost every case, in one way or another, misinformed, confusing, or wrong.
And unfortunately, they have caused concern over the potential breadth of what
the President has actually authorized.

It seems that everyone who has heard of the President’s actions has an opinion
– as well we should regarding matters of national security, separation of
powers, and civil liberties. Of course, a few critics are interested only in
political gains. Other doubters hope the President will do everything he can
to protect our country, but they worry about the appropriate checks upon a
Commander in Chief’s ability to monitor the enemy in a time of war.

Whatever your opinion, this much is clear: No one is above the law. We are
all bound by the Constitution, and no matter the pain and anger we feel from
the attacks, we must all abide by the Constitution. During my confirmation
hearing, I said that, quote, “we are very, very mindful of Justice O’Connor’s
statement in the 2004 Hamdi decision that a state of war is not a blank check
for the President of the United States with respect to the rights of American
citizens. I understand that and I agree with that.” Close quote. The
President takes seriously his obligations to protect the American people and to
protect the Constitution, and he is committed to upholding both of those
obligations.

I’ve noticed that through all of the noise on this topic, very few have asked
that the terrorist surveillance program be stopped. The American people are,
however, asking two important questions: Is this program necessary? And is it
lawful? The answer to each is yes.

***

The question of necessity rightly falls to our nation’s military leaders.
You’ve heard the President declare: We are a nation at war.

And in this war, our military employs a wide variety of tools and weapons to
defeat the enemy. General Mike Hayden, Principal Deputy Director of National
Intelligence and former Director of the NSA, laid out yesterday why a terrorist
surveillance program that allows us to quickly collect important information
about our enemy is so vital and necessary to the War on Terror.

The conflict against al Qaeda is, in fundamental respects, a war of information.
We cannot build walls thick enough, fences high enough, or systems strong
enough to keep our enemies out of our open and welcoming country. Instead, as
the bipartisan 9/11 and WMD Commissions have urged, we must understand better
who they are and what they’re doing – we have to collect more dots, if you
will, before we can “connect the dots.” This program to surveil al Qaeda is a
necessary weapon as we fight to detect and prevent another attack before it
happens. I feel confident that is what the American people expect … and it’s
what the terrorist surveillance program provides.

As General Hayden explained yesterday, many men and women who shoulder the daily
burden of preventing another terrorist attack here at home are convinced of the
necessity of this surveillance program.

***

Now, the legal authorities. As Attorney General, I am primarily concerned with
the legal basis for these necessary military activities. I expect that as
lawyers and law students, you are too.

The Attorney General of the United States is the chief legal advisor for the
Executive Branch. Accordingly, from the outset, the Justice Department
thoroughly examined this program against al Qaeda, and concluded that the
President is acting within his power in authorizing it. These activities are
lawful. The Justice Department is not alone in reaching that conclusion.
Career lawyers at the NSA and the NSA’s Inspector General have been intimately
involved in reviewing the program and ensuring its legality.

The terrorist surveillance program is firmly grounded in the President’s
constitutional authorities. No other public official – no mayor, no governor,
no member of Congress -- is charged by the Constitution with the primary
responsibility for protecting the safety of all Americans – and the
Constitution gives the President all authority necessary to fulfill this solemn
duty.

It has long been recognized that the President’s constitutional powers include
the authority to conduct warrantless surveillance aimed at detecting and
preventing armed attacks on the United States. Presidents have uniformly
relied on their inherent power to gather foreign intelligence for reasons both
diplomatic and military, and the federal courts have consistently upheld this
longstanding practice.

If this is the case in ordinary times, it is even more so in the present
circumstances of our armed conflict with al Qaeda and its allies. The
terrorist surveillance program was authorized in response to the deadliest
foreign attack on American soil, and it is designed solely to prevent the next
attack. After all, the goal of our enemy is to blend in with our civilian
population in order to plan and carry out future attacks within America. We
cannot forget that the 9/11 hijackers were in our country, living in our
communities.

The President’s authority to take military action—including the use of
communications intelligence targeted at the enemy—does not come merely from his
inherent constitutional powers. It comes directly from Congress as well.

Just a few days after the events of September 11th, Congress enacted a joint
resolution to support and authorize a military response to the attacks on
American soil. In this resolution, the Authorization for Use of Military
Force, Congress did two important things. First, it expressly recognized the
President’s “authority under the Constitution to take action to deter and
prevent acts of international terrorism against the United States.” Second, it
supplemented that authority by authorizing the President to, quote, “use all
necessary and appropriate force against those nations, organizations, or
persons he determines planned, authorized, committed, or aided the terrorist
attacks” in order to prevent further attacks on the United States.

The Resolution means that the President’s authority to use military force
against those terrorist groups is at its maximum because he is acting with the
express authorization of Congress. Thus, were we to employ the three-part
framework of Justice Jackson’s concurring opinion in the Youngstown Steel
Seizure case, the President’s authority falls within Category One, and is at
its highest. He is acting “pursuant to an express or implied authorization of
Congress,” and the President’s authority “includes all that he possesses in his
own right [under the Constitution] plus all that Congress can” confer on him.

In 2004, the Supreme Court considered the scope of the Force Resolution in the
Hamdi case. There, the question was whether the President had the authority to
detain an American citizen as an enemy combatant for the duration of the
hostilities.

In that case, the Supreme Court confirmed that the expansive language of the
Resolution —“all necessary and appropriate force”—ensures that the
congressional authorization extends to traditional incidents of waging war.
And, just like the detention of enemy combatants approved in Hamdi, the use of
communications intelligence to prevent enemy attacks is a fundamental and
well-accepted incident of military force.

This fact is borne out by history. This Nation has a long tradition of wartime
enemy surveillance—a tradition that can be traced to George Washington, who
made frequent and effective use of secret intelligence, including the
interception of mail between the British and Americans.

And for as long as electronic communications have existed, the United States has
conducted surveillance of those communications during wartime—all without
judicial warrant. In the Civil War, for example, telegraph wiretapping was
common, and provided important intelligence for both sides. In World War I,
President Wilson ordered the interception of all cable communications between
the United States and Europe; he inferred the authority to do so from the
Constitution and from a general congressional authorization to use military
force that did not mention anything about such surveillance. So too in World
War II; the day after the attack on Pearl Harbor, President Roosevelt
authorized the interception of all communications traffic into and out of the
United States. The terrorist surveillance program, of course, is far more
focused, since it involves only the interception of international
communications that are linked to al Qaeda or its allies.

Some have suggested that the Force Resolution did not authorize intelligence
collection inside the United States. That contention cannot be squared with
the reality of the 9/11 attacks, which gave rise to the Resolution, and with
the language of the authorization itself, which calls on the President to
protect Americans both “at home and abroad” and to take action to prevent
further terrorist attacks “against the United States.” It’s also contrary to
the history of wartime surveillance, which has often involved the interception
of enemy communications into and out of the United States.

Against this backdrop, the NSA’s focused terrorist surveillance program falls
squarely within the broad authorization of the Resolution even though, as some
have argued, the Resolution does not expressly mention surveillance. The
Resolution also doesn’t mention detention of enemy combatants. But we know
from the Supreme Court’s decision in Hamdi that such detention is authorized.
Justice O’Connor reasoned: “Because detention to prevent a combatant's return
to the battlefield is a fundamental incident of waging war…Congress has clearly
and unmistakably authorized detention in the narrow circumstances considered
here.”

As Justice O’Connor recognized, it does not matter that the Force Resolution
nowhere specifically refers to the detention of U.S. citizens as enemy
combatants. Nor does it matter that individual Members of Congress may not
have specifically intended to authorize such detention. The same is true of
electronic surveillance. It is a traditional incident of war and, thus, as
Justice O’Connor said, it is “of no moment” that the Resolution does not
explicitly mention this activity.

These omissions are not at all surprising. In enacting the Force Resolution,
Congress made no attempt to catalog every aspect of the use of force it was
authorizing.

Instead, following the model of past military force authorizations, Congress—in
general, but broad, terms—confirmed the President’s authority to use all
traditional and legitimate incidents of military force to identify and defeat
the enemy. In doing so, Congress must be understood to have intended that the
use of electronic surveillance against the enemy is a fundamental component of
military operations.

***

Some contend that even if the President has constitutional authority to engage
in the surveillance of our enemy in a time of war, that authority has been
constrained by Congress with the passage in 1978 of the Foreign Intelligence
Surveillance Act. Generally, FISA requires the government to obtain an order
from a special FISA court before conducting electronic surveillance. It is
clear from the legislative history of FISA that there were concerns among
Members of Congress about the constitutionality of FISA itself.

For purposes of this discussion, because I cannot discuss operational details,
I'm going to assume here that intercepts of al Qaeda communications under the
terrorist surveillance program fall within the definition of “electronic
surveillance” in FISA.

The FISA Court of Review, the special court of appeals charged with hearing
appeals of decisions by the FISA court, stated in 2002 that, quote, “[w]e take
for granted that the President does have that [inherent] authority” and,
“assuming that is so, FISA could not encroach on the President’s constitutional
power.” We do not have to decide whether, when we are at war and there is a
vital need for the terrorist surveillance program, FISA unconstitutionally
encroaches – or places an unconstitutional constraint upon – the President's
Article II powers. We can avoid that tough question because Congress gave the
President the Force Resolution, and that statute removes any possible tension
between what Congress said in 1978 in FISA and the President's constitutional
authority today.

Let me explain by focusing on certain aspects of FISA that have attracted a lot
of attention and generated a lot of confusion in the last few weeks.

First, FISA, of course, allows Congress to respond to new threats through
separate legislation. FISA bars persons from intentionally “engag[ing] . . .
in electronic surveillance under color of law except as authorized by statute.”
For the reasons I have already discussed, the Force Resolution provides the
relevant statutory authorization for the terrorist surveillance program. Hamdi
makes it clear that the broad language in the Resolution can satisfy a
requirement for specific statutory authorization set forth in another law.

Hamdi involved a statutory prohibition on all detention of U.S. citizens except
as authorized “pursuant to an Act of Congress.” Even though the detention of a
U.S. citizen involves a deprivation of liberty, and even though the Force
Resolution says nothing on its face about detention of U.S. citizens, a
majority of the members of the Court nevertheless concluded that the Resolution
satisfied the statutory requirement. The same is true, I submit, for the
prohibition on warrantless electronic surveillance in FISA.

You may have heard about the provision of FISA that allows the President to
conduct warrantless surveillance for 15 days following a declaration of war.
That provision shows that Congress knew that warrantless surveillance would be
essential in wartime. But no one could reasonably suggest that all such
critical military surveillance in a time of war would end after only 15 days.

Instead, the legislative history of this provision makes it clear that Congress
elected NOT TO DECIDE how surveillance might need to be conducted in the event
of a particular armed conflict. Congress expected that it would revisit the
issue in light of events and likely would enact a special authorization during
that 15-day period. That is exactly what happened three days after the attacks
of 9/11, when Congress passed the Force Resolution, permitting the President to
exercise “all necessary and appropriate” incidents of military force.

Thus, it is simply not the case that Congress in 1978 anticipated all the ways
that the President might need to act in times of armed conflict to protect the
United States. FISA, by its own terms, was not intended to be the last word on
these critical issues.

Second, some people have argued that, by their terms, Title III and FISA are the
"exclusive means" for conducting electronic surveillance. It is true that the
law says that Title III and FISA are "the exclusive means by which electronic
surveillance . . . may be conducted." But, as I have said before, FISA itself
says elsewhere that the government cannot engage in electronic surveillance
"except as authorized by statute." It is noteworthy that, FISA did not say
"the government cannot engage in electronic surveillance 'except as authorized
by FISA and Title III.'" No, it said, except as authorized by statute -- any
statute. And, in this case, that other statute is the Force Resolution.

Even if some might think that’s not the only way to read the statute, in
accordance with long recognized canons of construction, FISA must be
interpreted in harmony with the Force Resolution to allow the President, as
Commander in Chief during time of armed conflict, to take the actions necessary
to protect the country from another catastrophic attack. So long as such an
interpretation is “fairly possible,” the Supreme Court has made clear that it
must be adopted, in order to avoid the serious constitutional issues that would
otherwise be raised.

Third, I keep hearing, “Why not FISA?” “Why didn’t the President get orders
from the FISA court approving these NSA intercepts of al Qaeda communications?”

We have to remember that we’re talking about a wartime foreign intelligence
program. It is an “early warning system” with only one purpose: To detect and
prevent the next attack on the United States from foreign agents hiding in our
midst. It is imperative for national security that we can detect RELIABLY,
IMMEDIATELY, and WITHOUT DELAY whenever communications associated with al Qaeda
enter or leave the United States. That may be the only way to alert us to the
presence of an al Qaeda agent in our country and to the existence of an
unfolding plot.

Consistent with the wartime intelligence nature of this program, the optimal way
to achieve the necessary speed and agility is to leave the decisions about
particular intercepts to the judgment of professional intelligence officers,
based on the best available intelligence information. They can make that call
quickly. If, however, those same intelligence officers had to navigate through
the FISA process for each of these intercepts, that would necessarily introduce
a significant factor of DELAY, and there would be critical holes in our early
warning system.

Some have pointed to the provision in FISA that allows for so-called “emergency
authorizations” of surveillance for 72 hours without a court order. There’s a
serious misconception about these emergency authorizations. People should know
that we do not approve emergency authorizations without knowing that we will
receive court approval within 72 hours. FISA requires the Attorney General to
determine IN ADVANCE that a FISA application for that particular intercept will
be fully supported and will be approved by the court before an emergency
authorization may be granted. That review process can take precious time.

Thus, to initiate surveillance under a FISA emergency authorization, it is not
enough to rely on the best judgment of our intelligence officers alone. Those
intelligence officers would have to get the sign-off of lawyers at the NSA that
all provisions of FISA have been satisfied, then lawyers in the Department of
Justice would have to be similarly satisfied, and finally as Attorney General,
I would have to be satisfied that the search meets the requirements of FISA.
And we would have to be prepared to follow up with a full FISA application
within the 72 hours.

A typical FISA application involves a substantial process in its own right: The
work of several lawyers; the preparation of a legal brief and supporting
declarations; the approval of a Cabinet-level officer; a certification from the
National Security Adviser, the Director of the FBI, or another designated
Senate-confirmed officer; and, finally, of course, the approval of an Article
III judge.

We all agree that there should be appropriate checks and balances on our
branches of government. The FISA process makes perfect sense in almost all
cases of foreign intelligence monitoring in the United States. Although
technology has changed dramatically since FISA was enacted, FISA remains a
vital tool in the War on Terror, and one that we are using to its fullest and
will continue to use against al Qaeda and other foreign threats. But as the
President has explained, the terrorist surveillance program operated by the NSA
requires the maximum in speed and agility, since even a very short delay may
make the difference between success and failure in preventing the next attack.
And we cannot afford to fail.

The Fourth Amendment has never been understood to require warrants in all
circumstances. For instance, before you get on an airplane, or enter most
government buildings, you and your belongings may be searched without a
warrant. There are also searches at the border or when you’ve been pulled over
at a checkpoint designed to identify folks driving while under the influence.
Those searches do not violate the Fourth Amendment because they involve
“special needs” beyond routine law enforcement. The Supreme Court has
repeatedly held that these circumstances make such a search reasonable even
without a warrant.

The terrorist surveillance program is subject to the checks of the Fourth
Amendment, and it clearly fits within this “special needs” category. This is
by no means a novel conclusion. The Justice Department during the Clinton
Administration testified in 1994 that the President has inherent authority
under the Constitution to conduct foreign intelligence searches of the private
homes of U.S. citizens in the United States without a warrant, and that such
warrantless searches are permissible under the Fourth Amendment.

The key question, then, under the Fourth Amendment is not whether there was a
warrant, but whether the search was reasonable. This requires balancing
privacy with the government’s interests – and ensuring that we maintain
appropriate safeguards. We’ve done that here.

No one takes lightly the concerns that have been raised about the interception
of communications inside the United States. But this terrorist surveillance
program involves intercepting the international communications of persons
reasonably believed to be members or agents of al Qaeda or affiliated terrorist
organizations. This surveillance is narrowly focused and fully consistent with
the traditional forms of enemy surveillance found to be necessary in all
previous armed conflicts. The authorities are reviewed approximately every 45
days to ensure that the al Qaeda threat to the national security of this nation
continues to exist. Moreover, the standard applied − “reasonable basis to
believe” − is essentially the same as the traditional Fourth Amendment
probable cause standard. As the Supreme Court has stated, “The substance of
all the definitions of probable cause is a reasonable ground for belief of
guilt.”

If we conduct this reasonable surveillance – while taking special care to
preserve civil liberties as we have – we can all continue to enjoy our rights
and freedoms for generations to come.

***

I close with a reminder that just last week, al Jazeera aired an audio tape in
which Osama bin Laden promised a new round of attacks on the United States.
Bin Laden said the proof of his promise is, and I quote, “the explosions you
have seen in the capitals of European nations.” He continued, quote, “The
delay in similar operations happening in America has not been because of
failure to break through your security measures. The operations are under
preparation and you will see them in your homes the minute they are through
with preparations.” Close quote.

We’ve seen and heard these types of warnings before. And we’ve seen what the
result of those preparations can be – thousands of our fellow citizens who
perished in the attacks of 9/11.

This Administration has chosen to act now to prevent the next attack, rather
than wait until it is too late. This Administration has chosen to utilize
every necessary and lawful tool at its disposal. It is hard to imagine a
President who wouldn’t elect to use these tools in defense of the American
people – in fact, I think it would be irresponsible to do otherwise.

The terrorist surveillance program is both necessary and lawful. Accordingly,
the President has done with this lawful authority the only responsible thing:
use it. He has exercised, and will continue to exercise, his authority to
protect Americans and the cherished freedoms of the American people.